But It IS True, Justice Alito

As you’ve no doubt heard by now, in an extraordinary escalation of tension between President Barack Obama and the sitting justices of the Supreme Court during last night’s State of the Union address, Justice Samuel Alito gave us this year’s “Joe Wilson moment” by shaking his head and mouthing “Not true…” in response to the following statement by the President:
With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.
Conservatives and progressives may argue this morning about whether President Obama should have criticized the Court and about the severity of Justice Alito’s breach of protocol, but Justice Alito faces a bigger problem:  Obama’s comment is true.

In fact, Obama’s carefully-phrased comment to the justices highlights two critical aspects of the majority’s decision in Citizens United v. FEC, both of which constitute dangerous and revolutionary shifts in long-settled law:

  1. The Court ruled that the First Amendment makes no distinction among speakers—that the identity of a speaker makes no difference for purposes of government regulation of speech.  As Justice Stevens pointed out in his dissenting opinion, this logic leads to some remarkable conclusions: “Such an assumption would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”  Stevens also clearly explained that the majority’s logic “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”  This is truly an unprecedented reading of the Bill of the Rights that could have consequences that reach even beyond campaign finance law.  By eliminating any distinction among speakers, which, as Obama noted, has been recognized for at least a century, the Court hinted that any regulation that distinguishes between corporations and individuals may be problematic – raising the question of what other rights currently reserved for citizens the Court might soon extend to corporations.  As Stevens noted in his dissent, under the majority’s logic, “it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
  2. To make matters worse, the Court dramatically redefined the meaning and standard of “corruption,” ruling that only the strictest and most direct forms of corruption – e.g. bribery – are prohibited, and not, as was previously the standard, any “appearance of undue influence.”  This critical component of last week’s decision redefined the boundaries of what constitutes corruption and made influence by special interests significantly more difficult to prove.  More important, the ruling, as Obama precisely indicated and as Senate Judiciary Chairman Patrick Leahy (D-VT) fervently reiterated this morning on the Senate floor, appears to sweep away vital barriers that were keeping foreign special interests, such as Toyota, from manipulating American elections.  If all speakers are treated equally under the First Amendment, and the only corruption Congress can prohibit is direct vote-trading for money, then there is no reason why foreign companies with a U.S.-presence couldn’t spend endless amounts of money to influence U.S. elections.  Under the logic of the Supreme Court’s decision, just as Exxon can now spend millions to oppose a candidate who, for example, supports the climate bill, so, too, could Toyota or other foreign companies.

    If Justice Alito wanted to disclaim any of this, or if he thought that the majority’s opinion was not as far-reaching as Justice Stevens’ powerful dissenting opinion demonstrated, he should have written a concurring opinion.  He should have explained how the logic of the Court’s opinion doesn’t change course on over a century of campaign finance law that seeks to limit corporate influence in elections and showed us that the Court’s formalistic approach to the First Amendment and corporations won’t lead to foreign corporate spending in U.S. elections.  But muttering at the State of the Union clarifies nothing.

    The stakes here are extraordinarily high.  As Obama alluded in his comment, the last century has witnessed a historic trend toward greater enfranchisement of American citizens, accompanied by a significant increase in restrictions on corporate spending to influence elections.  The Court’s decision in Citizens United unequivocally halts and reverses that trend, pulling the rug out from under decades of progress toward achieving the democracy envisioned by the Founders, and improved upon by successive generations of Americans that amended the Constitution to guarantee the right to vote to all citizens, irrespective of race, sex, age, and class.  If Justice Alito believes that the damage done to our electoral system by the majority’s opinion in Citizens United can be contained, we hope that he will explain it in a judicial opinion in the next case that seeks to chip away further at what remains of our Nation’s campaign finance laws.